Refusal of application to approve birth trauma settlement

Ghazi by her tutor Sfajalani v Western Sydney Local Health District trading as Auburn Hospital [2018] NSWSC 1743 is of interest as a refusal of an application for approval of a settlement for an infant.

At [20] – [21]:

I am aware that Ghina’s parents have expressed the not unreasonable and perfectly understandable view that they wish to have an end to the uncertainty of the present litigation. Although that is a consideration of obvious force, it cannot in my view be unduly influential in assessing the present application, far less determinative of it, in which the best interests of Ghina are paramount.

I accept that there are competing views in this case concerning both the issue of breach of duty and causation. There may well be others. However, I do not think that the proposed compromise accurately reflects the difficulties that are said to be facing Ghina on either issue. I accept that some discount to take account of the prospect that Ghina may not succeed is appropriate, but as presently advised that discount disproportionately favours the hospital when assessed in the light of the competing expert opinions. In so saying, I am not intending to express a concluded, or even a preliminary, view about the likely outcome of this litigation. Importantly, I am not presently satisfied that the proposed settlement accurately or adequately represents the potentially competing strengths of the parties and is not in those circumstances in Ghina’s best interests. Accordingly, I decline to approve it.